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2025 DAILYLAW 49762 (KAR)

SANGRAMS/O MADAPPA SUNDALE v. RAJENDRA AND ANR

CRL.A/200079/2023 · 2025-02-11

S Vishwajith Shetty

Criminal Appealbody2025

Judgment text

Extracted from the PDF above. The PDF is authoritative.

- 1 - NC: 2025:KHC-K:980 CRL.A No. 200079 of 2023 IN THE HIGH COURT OF KARNATAKA, KALABURAGI BENCH DATED THIS THE 11TH DAY OF FEBRUARY, 2025 BEFORE THE HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY CRIMINAL APPEAL NO.200079 OF 2023 (378(Cr.PC)/419(BNSS)) BETWEEN: SANGRAM S/O MADAPPA SUNDALE AGED ABOUT 53 YEARS, OCC. BUSINESS, R/O AURAD (B), DIST: BIDAR-585326 …APPELLANT (BY SRI KADLOOR SATYANARAYANACHARYA, ADVOCATE) AND: 1. RAJENDRA S/O SAMBHAJI GAYAKWAD, UDAGIR ROAD, NEAR HARIJAN WADA, TQ: AURAD (B), DIST: BIDAR-585326 2. ANITA W/O RAJENDRA GAYAKWAD UDAGIR ROAD, NEAR HARIJAN WADA, TQ: AURAD (B), DIST: BIDAR-585326 …RESPONDENTS (BY SRI JAIRAJ K. BUKKA, ADVOCATE FOR R1; NOTICE TO R2 IS HELD SUFFICIENT) THIS CRL.A. IS FILED U/S. 378 (4) OF CR.P.C PRAYING TO ALLOW THE APPEAL AND SET ASIDE THE JUDGMENT OF ACQUITTAL DATED 07.01.2023 PASSED BY THE CIVIL JUDGE AND JMFC, AURAD, IN C.C.NO.379/2019 AND CONVICT ACCUSED PERSONS FOR THE OFFENCE PUNISHABLE U/SEC. Digitally signed by SHIVAKUMAR HIREMATH Location: HIGH COURT OF KARNATAKA - 2 - NC: 2025:KHC-K:980 CRL.A No. 200079 of 2023 138 OF N.I. ACT AND TO AWARD COMPENSATION TO THE APPELLANT TO DOUBLE THE CHEQUE AMOUNT, IN THE INTEREST OF JUSTICE. THIS APPEAL COMING ON FOR FURTHER HEARING, THIS DAY, JUDGMENT WAS DELIVERED THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY ORAL JUDGMENT (PER: HON'BLE MR. JUSTICE S.VISHWAJITH SHETTY) This appeal under Section 378(4) of Cr.P.C. is filed by the de-facto complainant assailing the judgment and order of acquittal dated 07.01.2023, passed by the Civil Judge and JMFC, Aurad (for short ‘Trial Court’) in C.C.No.379/2019. 2. Heard learned counsel for the parties. 3. The appellant herein had filed a private complaint against the respondents for the offence punishable under Section 138 of the Negotiable Instruments Act, 1881 (for short ‘N.I.Act’). It is the case of the appellant that the respondents had borrowed hand- loan of Rs.9,50,000/- from him for the purpose of - 3 - NC: 2025:KHC-K:980 CRL.A No. 200079 of 2023 construction of a new house near Santosh theater and towards repayment of the said amount borrowed by them, they had issued cheque bearing No.599247 dated 11.11.2019 drawn on State of Bank of India, Aurad branch for a sum of Rs.9,50,000/- in favour of the appellant. The said cheque on presentation for realization was dishonoured by the drawee Bank and thereafter, the appellant had got issued legal notice to the respondents, which was duly served. In spite of service of legal notice, no reply was issued on behalf of the respondents nor was the amount covered under the cheque in question repaid to the appellant. It is under these circumstances, the appellant had filed a private complaint against the respondents/accused for the offence punishable under Section 138 of the N.I.Act. The respondents, who had appeared before the Trial Court in response to the summons issued to them had claimed to be tried. Therefore, the appellant to substantiate his case had examined himself as PW.1 before the Trial Court and got marked six documents as Exs.P1 to P6. On behalf of the - 4 - NC: 2025:KHC-K:980 CRL.A No. 200079 of 2023 respondents/accused, no defence evidence was led nor was any document got marked. The Trial Court after hearing the arguments addressed on both sides, vide impugned judgment and order, acquitted the respondents for the offence punishable under Section 138 of the N.I.Act. Being aggrieved by the same, the appellant/de- facto complainant is before this Court. 4. Learned counsel for the appellant/de-facto complainant submits that he has produced additional documents before this Court along with an application filed under Section 391 of Cr.P.C. and the said documents establish the financial capacity of the appellant. He submits that the appellant during the course of his deposition has stated that he owns 15 to 16 acres of land and he has now produced material before this Court to show that he had sold two plots under a registered sale deed in the year 2018 for valid sale consideration of Rs.3,60,000/-. In addition to the income from the agricultural property, appellant had also income from his - 5 - NC: 2025:KHC-K:980 CRL.A No. 200079 of 2023 tailoring avocation. He submits that if an opportunity is not granted to the appellant to place relevant material before the Trial Court to establish his financial capacity, he will be put to untold hardship, more so, since the respondents had failed to probablise their defence put forward by them before the Trial Court. Accordingly, he prays to allow the appeal. 5. Per contra, learned counsel for the respondent has opposed the prayer made in the appeal. He submits that since the appellant had not produced necessary material to show the alleged transaction with the respondents, wherein, he had paid a huge amount of Rs.9,50,000/- to them, the Trial Court has rightly dismissed the complaint and has acquitted the respondents of the alleged offence. No interference is called for as against the well reasoned judgment and order of acquittal passed by the Trial Court. Accordingly, he prays to dismiss the appeal. - 6 - NC: 2025:KHC-K:980 CRL.A No. 200079 of 2023 6. It is the case of the appellant that the respondents/accused, who are acquainted to him had borrowed a sum of Rs.9,50,000/- from him and towards repayment of the same, they had issued the cheque in question. It is not in dispute that the cheque is drawn on the joint account of the respondents maintained by them in State of Bank of India, Aurad branch and it is also not in dispute that the signatures found on the cheque in question belong to respondents/accused. Therefore, a presumption under Section 139 of N.I.Act arises against the respondents and unless they rebut the said presumption by putting up probable defence, they are liable to be punished for the alleged offence. 7. The respondents undisputedly had not issued any reply to the legal notice issued on behalf of the appellant, which was duly served on them. The respondents/accused have raised a defence before the Trial Court that the cheque in question was collected by the appellant during the course of an earlier transaction, - 7 - NC: 2025:KHC-K:980 CRL.A No. 200079 of 2023 wherein, they had borrowed a sum of Rs.1,00,000/- from him and though they had repaid the said amount, the cheque in question was not returned to them and the same was subsequently misused by the appellant. It is relevant to note here that even though such a defence was raised on behalf of the respondents, they have failed to probablise the said defence by placing necessary material before the Trial Court. The respondents have not stepped into the witness box nor have examined any witness in support of their defence and no documents were also got marked in support of their defence. However, the Trial Court without appreciating all these aspects of the matter has acquitted the respondents/accused of the alleged offence solely on the ground that the appellant had failed to prove his financial capacity to lend a sum of Rs.9,50,000/- to the respondents/accused. The appellant during the course of his deposition as PW.1 before the Trial Court has stated that he is a tailor by profession and he owns 15 to 16 acres of land. However, no material was - 8 - NC: 2025:KHC-K:980 CRL.A No. 200079 of 2023 produced by him before the Trial Court to show that he owns the aforesaid extent of land. 8. The appellant has filed an application before this Court under Section 391 of Cr.P.C. with a prayer to permit him to produce additional evidence and along with said application, he has produced the copy of the sale deed dated 31.07.2018 executed by him in favour of one Chandrakant. Perusal of the said document would go to show that the appellant had sold two plots bearing Nos.41 and 42 situated at Santosh Colony, Aurad in favour of one Chandrakant for a total sale consideration of Rs.3,60,000/- under the aforesaid sale deed. This document would prima facie show that the appellant is a person of means and he also has additional income from his tailoring avocation. Since the Trial Court has acquitted the respondents/accused only on the ground that the appellant had failed to prove his financial capacity to lend a sum of Rs.9,50,000/- to the respondents, in spite of the fact that the presumption that arose against the - 9 - NC: 2025:KHC-K:980 CRL.A No. 200079 of 2023 respondents stood un-rebutted, I am of the opinion that an opportunity has to be given to the appellant to place necessary material before the Trial Court to prove his financial capacity to lend money to the respondents/accused and if such an opportunity is given, no hardship would be caused to the respondents. The Trial Court while considering the aspect of financial capacity of the appellant has observed that though he has deposed that he had sold two plots for valid consideration, he has failed to produce any document before the Trial Court regarding the sale transaction. However such a document is now produced by the appellant before this Court. It is also necessary to take note of the fact that the respondents/accused had not questioned the financial capacity of the appellant during the course of cross-examination, but for the first time such a contention was urged at the stage of arguments. Under the circumstances, I am of the opinion that the impugned judgment and order needs to be set aside and the matter - 10 - NC: 2025:KHC-K:980 CRL.A No. 200079 of 2023 has to be remitted to the Trial Court for the purpose of providing an opportunity to the parties to lead additional evidence. Accordingly, following order is passed: ORDER i) The criminal appeal is allowed. ii) The judgment and order of acquittal dated 07.01.2023 passed by the Court of Civil Judge and JMFC, Aurad in C.C.No.379/2019 is set aside and the matter is remitted to the Trial Court with a direction to the Trial Court to dispose off the case afresh after affording an opportunity to the parties to lead additional evidence. iii) Since the case is of the year 2019, the Trial Court shall make endeavors to dispose off the case within six months from the date of receipt of certified copy of this judgment. Sd/- (S.VISHWAJITH SHETTY) JUDGE SRT List No.: 1 Sl No.: 45 CT-PK